To say that Borg vs Malta passes both legal and moral censure on our courts would be no understatement. This absolute judgment handed down recently by the European Court of Human Rights now constitutes a watershed in the judicial history of Malta.

But then you never know where you stand with the Maltese judicial system. It seems to thrive on uncertainty. It goes against the grain, departs from its own established case law (not to mention Europe’s) and creates its own ad hoc body of case law, which frequently fails to champion the rights of the individual and all too easily appears inhumane. Now that the European court has basically said the same thing, I feel I can say it without being labelled a crank or a crackpot.

I hover between sadness, embarrassment and relief. I find it sad and embarrassing for the Maltese Constitutional Court to be on the receiving end of such an unceremonious – but ultimately long overdue and deserved – admonition from the European court.

It is perhaps even sadder still for our sheep-like inferior courts whose habit it is to ‘defer’ to that particular court, though not bound to do so by any precedent. But I’m mostly relieved – coming as it does from such an august body – because it is ultimately in the interest of Maltese justice.

In a nutshell, and to spare many of you the tedium of legal minutiae, here’s basically what happened. There was a time, not so long ago, when Maltese law did not recognise the accused’s inalienable right to be assisted by a lawyer during the pre-trial stage.

True, in 2010 the government begrudgingly provided for a form of legal assistance. But, like many judicial ‘reforms’, it is tokenistic and wanting and still does not offer sufficient protection against human rights violations.

In 2008, the European Court decision of Salduz vs Turkey established the principle that the absence of a lawyer during police interrogation was a violation of the applicant’s right to a fair trial. As a result, anyone who had ever been arrested and interrogated in Malta until then – regardless of whether or not they had ever released a statement – was suddenly in a position to prosecute a successful case for a human rights violation.

Post-2008 was boom-time for constitutional cases, with everyone and his brother claiming redress because there was no legal assistance during police interrogation.

In 2011, basing itself on Salduz, the Maltese Constitutional Court delivered three consecutive judgments, all of which upheld the principle of the right of access to a lawyer during the initial stages of questioning, as espoused by the European court’s Grand Chamber.

I wish I could tell you that the legal uncertainty endemic to our courts stops here. But it seems to be the name of the game

Then, for some arcane reason, the Maltese Constitutional Court decided to do a U-turn. This game changer elected to interpret Salduz restrictively as an exceptional case that could not apply to all and sundry defendants. Henceforth, the right to legal assistance could only apply in special cases to ‘vulnerable persons’.

Accordingly, a seasoned criminal, or one who had chosen not to release a statement, would not suffer prejudice on account of not having been legally assisted, and so would not be able to invoke violation. According to Strasbourg, the Maltese courts basically chose to manipulate the collective enforcement of human rights based on “common heritage of political traditions, ideals, freedom and the rule of law” and reduce it to a matter of mere ‘pick and mix’.

This has been the situation in Malta for the last four years, with the result that legal uncertainty in criminal law (which is more science than art) is seriously undermined and defendants are treated differently. Subsequent cases filed after those first three ‘laudable judgments’ were not treated in the same manner.

Naturally, this reversal of case law could hardly be said to be compatible with the legal expectations of citizens, defendants and lawyers. How do you tell a client that it can go either way – that you just don’t how the cookie will crumble?

I wish I could tell you that the legal uncertainty endemic to our courts stops here. But legal uncertainty seems to be the name of the game.

This won’t be the last Grand Chamber walloping against Malta. I’m confident there are a multitude of cases pending appeal in Strasbourg where the European court will manage to see what every court here – the Criminal Court, the Court of Appeal, the Civil Court of First Instance and the Constitutional Court – has failed to see.

I struggle to understand why many of our courts appear to treat human rights the way many treat immigrants – with contempt, as a huge inconvenience. I also find that by and large these courts are still too stingy and begrudging when it comes to human rights – legally, morally, emotionally, even financially.

It’s almost as if they’re being forced to fork out the damages from their own pockets. One would be forgiven for sometimes thinking they want to save face (or money?) for the government.

Perhaps our courts are more comfortable with boxes, whereas constitutional law does not lend itself to such rigidity, being more art than science. Perhaps the ‘criminal and guilty aspect’ of the accused clouds their judgement.

Oh I know there are courts who don’t deserve to be tarred with the same brush, and I salute them. I know that there are individual judges who preside over constitutional claims and stick to their guns, knowing their decisions will be overturned on appeal. I applaud their integrity and tenacity. Being a judge in this country can’t be easy. When the Constitutional Court – the highest court in the land – digs its heels in the ground, there’s a chance you too want to grab a spade and start digging.

I strongly believe the time has come for many of our courts to do some serious soul-searching. For indeed, “there is no crueller tyranny than that which is perpetuated under the shield of law and in the name of justice”. (Montesquieu).

michelaspiteri@gmail.com